Lombardi v. Small Business Administration

889 F.2d 959
CourtCourt of Appeals for the Tenth Circuit
DecidedNovember 20, 1989
DocketNo. 88-1718
StatusPublished
Cited by9 cases

This text of 889 F.2d 959 (Lombardi v. Small Business Administration) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lombardi v. Small Business Administration, 889 F.2d 959 (10th Cir. 1989).

Opinion

DAUGHERTY, District Judge.

Plaintiff-Appellant Curtis Lombardi appeals from a District Court order dismissing his Bivens action for lack of subject matter jurisdiction. We agree with the dismissal and affirm.

Plaintiff Lombardi was hired by the Small Business Administration (SBA) in August, 1980, as a Presidential Management Intern. Presidential Management Intern positions are short-term positions and participation in the intern program confers no expectation of continued Federal employment upon the participants. The Office of Personnel Management has listed interns in the program as “excepted service” employees, who are by definition not within the competitive service. As a result, the Civil Service Rules and Regulations do not apply to the Intern’s removal from the position.

The Plaintiff-Appellant’s employment was terminated on February 26, 1982, in order to “promote the efficiency of the service”. Plaintiff appealed his termination to the Acting Administrator of the SBA, stating that his discharge was in retaliation for his party affiliation and for certain activities such as discussing racism in the SBA District Office with Equal Opportunity investigators and calling attention to improper Department of Housing and Urban Development contract oversight activities. In May, 1984, Plaintiff Lombardi filed two requests under the Freedom of Information Act with the SBA seeking all documents relating to his dismissal. The request was denied and Lombardi subsequently filed a complaint in the District Court for the District of New Mexico under the Privacy Act seeking disclosure of the withheld documents. This litigation was settled by the parties on May 5, 1986.

Thereafter, on February 20, 1987, Lombardi filed a “Complaint for Violation of Constitutional Rights” in the District Court for the District of New Mexico based upon his termination. The allegations contained in the 1987 Complaint are nearly identical to the factual allegations set forth in Lombardi’s 1982 administrative appeals. Defendants moved to dismiss the case against the SBA and the individual Defendants in their official capacity on the ground of sovereign immunity and also moved to dismiss the remaining claims for damages against the Defendants in their individual capacity based upon the Supreme Court’s decisions in Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983) and United States v. Fausto, 484 U.S. 439, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988). The Defendants also moved to dismiss the Complaint in its entirety based upon the expiration of the statute of limitations.

On January 22, 1988, the District Court granted the Motion to Dismiss based upon sovereign immunity, dismissing the action against the SBA and the individual Defendants in their official capacity. On March 29, 1988, the District Court dismissed the remaining claims against the individual Defendants, finding that there was no subject matter jurisdiction over the Plaintiff’s claims under Bush and Fausto because the Plaintiff was a Federal employee whose claims were governed by the Civil Service Reform Act of 1978 (CSRA).

The District Court declined to dismiss based upon the expiration of the statute of limitations. The SBA requested that the District Court reconsider this decision but the Court declined to do so.

The District Court determined that Plaintiff’s Bivens claim was precluded by the Supreme Court’s holdings in Bush and Fausto. We agree that the District Court correctly interpreted those cases to preclude the Plaintiff from judicial review of his termination, especially in light of the recent Supreme Court case of Schweiker v. Chilicky, 487 U.S. 412, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988).

The Supreme Court in Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), held that there should be a cause of action for damages against a Federal official who engages in unconstitutional conduct. The Court, however, cautioned that if there are any “special factors counseling hesitation in the absence of affirmative action by Congress”, id., at 396, [961]*96191 S.Ct. at 2004, Courts should decline to create an additional remedy.

The existence of a comprehensive statutory scheme such as the CSRA was found to be such a special factor in the Bush case. In Bush, the Supreme Court held that because a Federal employee’s claim that his First Amendment rights were violated by his superiors arose “out of an employment relationship that is governed by comprehensive procedural and substantive provisions giving meaningful remedies against the United States, we conclude that it would be inappropriate for us to supplement that regulatory scheme with a new judicial remedy”. Bush, 462 U.S. at 368, 103 S.Ct. at 2406.

The recent Supreme Court cases of Fausto, relied upon by the District Court in the case at bar, and in particular the most recent Chilicky case, indicate that the Court will not create a Bivens remedy in a Federal employment action even if no remedy at all has been provided by the CSRA. The Court stated in Chilicky that “[o]ur most recent decisions have responded cautiously to suggestions that Bivens remedies be extended into new context. The absence of statutory relief for a constitutional violation, for example, does not by any means necessarily imply that the Court should award money damages against the officers responsible for the violation.” Id., 108 S.Ct. at 2467. The Court continued by asserting that “the concept of ‘special factors counseling hesitation in the absence of affirmative action by Congress’ has proved to include an appropriate judicial deference to indications that Congressional inaction has not been inadvertent. When the design of a Government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration, we have not created additional Bivens remedies.” Id., 108 S.Ct. at 2468.

The rationale of the Bush, Fausto and Chilicky cases has been applied by this Court in a situation similar to that in the case at bar in Hill v. Dept. of Air Force, 884 F.2d 1318 (10th Cir.1989) (per curiam), and Brothers v. Custis, 886 F.2d 1282 (10th Cir.1989) (per curiam), in both of which this Court declined to create a Bivens remedy. This was also the decision of the 8th Circuit in McIntosh v. Turner, 861 F.2d 524 (8th Cir.1988), the D.C. Circuit in Spagnola v. Mathis, 859 F.2d 223 (D.C.Cir.1988) and the 7th Circuit in Feit v. Ward, 886 F.2d 848 (7th Cir.1989).

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Lombardi v. Small Business Administration
889 F.2d 959 (Tenth Circuit, 1989)

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Bluebook (online)
889 F.2d 959, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lombardi-v-small-business-administration-ca10-1989.